After
Part 1, this is the second part of the analysis by Katfriend Riyadh
Al-Balushi (SOAS University of London) of the the IP
implications of the Qatar diplomatic crisis.

Here's
what Riyadh writes:

“The final part of our series on the treatment of Qatari intellectual
property rights in the Gulf Cooperation Council (GCC) diplomatic crisis explains the actions taken against
beIN Sports beyond merely banning it and the extent to which these actions may
be seen as a violation of the TRIPS Agreement - as Qatar currently claims.

The ban of beIN Sports would have
certainly had economic implications on Qatar, but it is also problematic to the
other countries involved in the dispute, too. Qatar is not the only GCC country
invested in sports. In the UAE, Emirates Airline is heavily invested in
football and has partnerships with clubs such as AC Milan, Real Madrid, Paris
Saint-Germain, and Arsenal. In fact, according to its own website, the deal that Emirates signed with Arsenal Football Club in 2004 is
the biggest club sponsorship in English football history. Therefore, limiting
the ability to view major sporting events would go against the very
investments that the UAE is making in sports, especially as the English Premier
League, for which beIN Sports has the exclusive right to broadcast in the
Middle East, was due to start several weeks after the diplomatic crisis began.
It is therefore not surprising that the UAE changed its mind and allowed its
two ISPs to restore access to beIN Sports prior to the start of
English Premier League in August, even though no progress has been made in
regard to the diplomatic dispute.

Saudi does not have the same investment
the UAE has in football, and therefore does not have the same economic
incentives to permit access to international sporting events, but the ban has
been problematic to Saudi nonetheless. While one can argue that
restricting access to Al Jazeera has freedom of expression implications, these
implications are nominal from the perspective of Saudi users as there are
hundreds of other legal outlets on the internet that users in Saudi can
access to read opinions other than those sanctioned by the Saudi government.
However, restricting access to beIN Sports is a much more serious concern to
the members of the public in Saudi than Al Jazeera because beIN Sports has the
exclusive right in the region to broadcast the most popular international
sporting events, and therefore a ban on watching beIN Sports is effectively a
ban on watching live sports in Saudi, including the highly popular, and soon to
start at that time, English Premier League. As managing public opinion has been
extremely important to all the parties involved in the diplomatic dispute,
Saudi had to be careful not to make its own nationals feel harmed by the
actions their government is taking against Qatar, which could have consequently
made Saudi nationals less sympathetic to the drastic measures their government
is taking towards their neighbour.

While the UAE decided to bite the
bullet and simply unblocked beIN Sports, things in Saudi took a different
route. A signal piracy network cheekily named beoutQ emerged on the internet allowing users in Saudi to freely stream all
the channels of beIN Sports. The streams of beoutQ have an overlay that covers
the original logo of beIN Sports with that of beoutQ, but as the actual content
is literally that of beIN Sports, any person watching would immediately figure
out the real identity of the channel. There are also apparently beoutQ TV
receivers already on sale in Saudi and for which subscriptions can be purchased
from physical stores in Saudi starting from $15 a month. The website of beoutQ
has multiple mirrors, and the website appears to use geo-blockers that allow
only users from Saudi to view its streams.

Unlike the act of merely blocking
access to beIN Sports, the Saudi beoutQ is broadcasting the signal of beIN
Sports without permission and is likely to be in violation of Saudi's own laws,
since the rights of broadcasting organisations are protected by Article 9(2) of
the Saudi Copyright Law of 2003 and Article 7(3) of the Saudi Copyright Regulations of 2004.

There is no hard evidence on who
exactly is behind beoutQ. The management of beIN Sports attempted reaching out
to the Saudi authorities urging them to take action, but none were taken. The
initial announcement of the launch of beoutQ was published by Al Riyadh, a
national Arabic newspaper in Saudi, and it was further promoted on the accounts
of several prominent media and sports figures in Saudi, so there is no doubt
that the authorities in Saudi are fully aware of the incident and are choosing
not to take any action to stop beoutQ.

As the blockade against Qatar is still
in place, Qatari nationals and their businesses are not allowed into Saudi and
therefore have no access to Saudi courts to take civil action against the
administrators of beoutQ website or the distributors of beoutQ receivers.
Saudi is also aware of the widespread violation of the rights of Qatari
rights-holders and is not taking any action to prosecute the offenders. Unlike
the mere ban of Qatari intellectual property works initially, the case in Saudi
has now become a failure to protect the intellectual property works of Qatari
nationals and is more likely to be in violation of the TRIPS Agreement, not
only in regard to Articles 3 and 4, but also in regard to substantive provisions
relating to the protection of copyright right under Part II and those relating
the availability of enforcement mechanisms under Part III of the TRIPS
Agreement.

The first stage in Qatar's WTO
complaint against Saudi, Bahrain, and the UAE required making a request for
consultation, and the period for this consultation has recently expired. Qatar
has now made a formal request to the WTO Dispute
Settlement Body to establish a panel in
regard to its complaint against the UAE (the only country that has formally
declined the consultation request).

The new Qatari request to establish a
panel has more elaborate arguments in regard to intellectual property rights
and is not merely based on Articles 3 and 4 of the TRIPS Agreement. The request
also relies on Articles 41, 42 and 61 of Part III of the TRIPS Agreement
relating to enforcement. This new request claims that the actions of the UAE
are in violation the TRIPS Agreement on the grounds of the failure of the UAE
to allow Qatari nationals to 'enforce' their intellectual property
rights, the failure of the UAE to 'make available' to Qatari nationals 'the
civil judicial procedures concerning the enforcement of intellectual property
rights', and the failure of the UAE to 'provide criminal procedures and
penalties in cases of copyright piracy on a commercial scale, where the
copyrights are owned by Qatari nationals'. The arguments are therefore not
merely about blocking access to Qatari intellectual property works, but about
blocking the access of Qatari rights-holders to the legal system that enables
the enforcement of intellectual property, and the failure to prosecute those
who violate Qatari intellectual property rights. The complaint also claims the violation
of many other WTO obligations outside the TRIPS Agreement.At the moment, the request to establish
a panel has been made in regard to the complaint against the UAE, where beIN
Sports is actually legally available through Emirati ISPs and there are no
publicised incidents of the violation of any Qatari intellectual property
rights, so it is not clear if these arguments have any facts on the grounds to
back them up. It seems natural that Qatar will also make a similar request to
establish a panel in regard to its complaints against Saudi (and Bahrain) as
well, where the intellectual property rights of beIN Sports are widely
infringed.”